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2020 DIGILAW 266 (CAL)

Md. Safique v. State of West Bengal

2020-02-24

JOYMALYA BAGCHI, SUVRA GHOSH

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JUDGMENT : Suvra Ghosh, J. 1. The appeal is directed against judgment and order of conviction and sentence dated 23-09-2011 and 26-09-2011 passed by the Learned Additional Sessions Judge, 1st Court, Jalpaiguri in Sessions Case No. 170 of 2002. By the said judgment, the trial Court convicted the appellant for offence punishable under-section 302 of the Indian Penal Code (in short the I.P.C) and sentenced him to suffer life imprisonment and pay fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for another two months. 2. The prosecution story is that on 24-07-1992 one Samirul lodged written complaint before Banarhat Police Station stating inter-alia that on the same day when he was in his house, a lady informed him that Safique had killed his sister with a dagger. On reaching the place of incident, he found his sister lying dead with deep stab injury on the left side of her chest and on her right hand which were bleeding profusely. Night guard named Jafar Khan who worked in Section No. 114 informed Samirul that he saw Safique fleeing from the place with a dagger in his right hand and slippers in his left hand. The complainant informed the matter to the Head Clerk of Garden's Office and thereafter reported the matter at the Police Station. 3. Upon receipt of the written complaint, Banarhat Police Station Case No. 73 of 1992 dated 24-07-1992 was registered under section 302 of the I.P.C. Upon completion of investigation, charge sheet was submitted against the accused/appellant under section 302 of the I.P.C. The case was committed to the Court of Learned Sessions Judge, Jalpaiguri and subsequently transferred to Learned Additional Sessions Judge, 1st Court, Jalpaiguri for trial. 4. On the basis of material on record, charge was framed against the accused/appellant under section 302 of the I.P.C. Substance of accusation was read over and explained to the accused to which he pleaded not guilty and claimed to be tried. Accordingly, the prosecution examined 18 witnesses in support of its case and several documents were marked as Exhibits 1-11 on its side. The accused refrained from adducing evidence in support of his defence and his contention as appears from the trend of cross-examination of witnesses as well as examination under section 313 of the Cr.P.C, is a denial of the prosecution case and a plea of innocence. 5. The accused refrained from adducing evidence in support of his defence and his contention as appears from the trend of cross-examination of witnesses as well as examination under section 313 of the Cr.P.C, is a denial of the prosecution case and a plea of innocence. 5. As the appellant was not represented in the appeal Ms. Trina Mitra was requested to appear as Amicus Curiae to represent the appellant. 6. Drawing the attention of the Court to the shortcomings and contradictions in the evidence on record, learned advocate for the appellant has submitted that the judgment convicting the appellant is bereft of the cardinal principles of criminal jurisprudence. There is hardly any evidence which suggests that the appellant was present at the place of occurrence when his wife Amirunnesa suffered unnatural death, far less his involvement in the alleged murder. Most of the witnesses have turned hostile and PW-9 who claimed to have witnessed the incident retracted from her earlier statement in her cross-examination. There is no evidence connecting the appellant to the murder of his wife and the appellant should be given the benefit of doubt and awarded an order of acquittal. 7. The State has supported the judgment impugned and has submitted that PW-9 who is the eye-witness to the incident narrated the incident in her examination in chief. Though she retracted from her earlier statement in her cross-examination, she submitted before the Court that upon instruction of the Learned Public Prosecutor, she stated the truth before the Court. PW-6 who was the chowkidaar of the tea garden at the relevant time saw a person fleeing away with slippers in one hand and a knife in the other hand. Immediately thereafter, he found the dead body of Amirunnesa lying in the tea garden and learnt from Nasiran that Safique had murdered her. PW-6 who is the victim's brother stated that he was informed about the murder by Sabratan (PW-9) and on reaching the tea garden was informed by the chowkidaar that he saw the assailant flee away from the spot. Such statement of the chowkidaar is corroborated by PW-9 who was present at the place of occurrence and witnessed the murder of Amirunnesa by Safique. Upon conducting post-mortem examination of the deceased, the autopsy surgeon detected stab wounds penetrating the pericardium and right ventricle of heart and incised wound on the right forearm of the deceased. Such statement of the chowkidaar is corroborated by PW-9 who was present at the place of occurrence and witnessed the murder of Amirunnesa by Safique. Upon conducting post-mortem examination of the deceased, the autopsy surgeon detected stab wounds penetrating the pericardium and right ventricle of heart and incised wound on the right forearm of the deceased. This corroborates the version of PW-9 that Safique chopped the right hand of the victim twice with a "valla" and stabbed her on the chest. Learned advocate for the State has submitted that the prosecution has been able to prove the guilt of the appellant to the hilt and the appeal should be dismissed and judgment impugned be affirmed. 8. Law enjoins that the burden of bringing home charge against the accused lies solely upon the prosecution and the prosecution should bring evidence which should be so compact, cogent, believable and trustworthy as would become incompatible with the innocence of the accused. Any position short of this would entitle the accused to earn his acquittal. Even if the accused keeps mum throughout the trial, the high degree of responsibility cast upon the prosecution is not relieved in the least. The present case is required to be considered and evaluated in such context. 9. PW-1 Md. Sahid Ansari, PW-2 Gulam Rasool, PW-3 Abdus Subhan, PW-16 Safeda Khatoon, and PW-17 Marina Khatoon did not support the prosecution case and were declared hostile by the prosecution. 10. PW-4 Shyam Narayan Jha was a constable posted at Birpara C.I office at the relevant time and carried the dead body of the victim to the hospital from the tea garden. 11. PW-5 S.I Phanindra Chandra Deb received the complaint and registered the case against the appellant. 12. PW-6 Samirul who is the defacto complainant and the brother of the deceased stated that his sister Amirunnesa went to the garden to fetch wood on 24-07-1992 at about 10:30 - 11:00 AM and one Sabratan informed him that Amirunnesa was murdered by Safique. On reaching Section 114 of the garden, PW-6 found his sister lying in a pool of blood with her face downwards and the chowkidaar of the tea garden stated that he saw the assailant fleeing away. He learnt that his sister was murdered with a dagger. However, this witness retracted from his statement in his cross-examination. 13. PW-7 Md. On reaching Section 114 of the garden, PW-6 found his sister lying in a pool of blood with her face downwards and the chowkidaar of the tea garden stated that he saw the assailant fleeing away. He learnt that his sister was murdered with a dagger. However, this witness retracted from his statement in his cross-examination. 13. PW-7 Md. Jafar who was the chowkidaar of the tea garden saw a person fleeing away with chappal in one hand and a knife (chaku) in the other hand. He was unable to identify the person but found the dead body of Amirunnesa immediately thereafter. 14. PW-8 Abul Khan failed to be of any aid to the prosecution case. 15. PW-9 Sabratannesa went to the tea garden with Amirunnesa and others at the material point of time to collect dry wood and the appellant appeared there and started speaking to the victim. The appellant asked for "khaini" from the victim which she was unable to give, following which the appellant caught hold of her hair, took out a "bhalla" from his back pocket and assaulted her twice on the right hand. When Amirunnesa held her right hand with her left hand, the appellant stabbed her on the chest. The victim fell on the ground and the appellant fled away with his chappals in one hand and "bhalla" in the other hand. PW-9 called Amirunnesa who asked for water. She immediately rushed to inform Samirul and narrated the entire incident to him. Then both of them rushed back to the spot. During cross-examination, this witness prevaricated from her earlier statement and said that she had deposed out of fear as she was threatened by someone outside the Court. In answer to the question put forth by the trial Court, the witness stated that she was asked to speak the truth before the Court on the previous date and had complied with such instruction of the Learned Public Prosecutor. 16. PW-10 Jamirul Haque scribed the written complaint as dictated by the complainant. He heard that Amirunnesa was murdered by one Safique. 17. PW-11 home guard Samaresh Das Gupta is a signatory to the seizure list prepared by the police upon seizure of the wearing apparel of the victim. 18. PW-12 Shoaib Ahmed signed on the inquest report prepared by the police. 19. PW-13 Dr. He heard that Amirunnesa was murdered by one Safique. 17. PW-11 home guard Samaresh Das Gupta is a signatory to the seizure list prepared by the police upon seizure of the wearing apparel of the victim. 18. PW-12 Shoaib Ahmed signed on the inquest report prepared by the police. 19. PW-13 Dr. Ram Chandra Sahu is the autopsy surgeon who conducted post-mortem examination over the dead body of the victim. On examination, the following injuries were detected:- 1. Stab wound of 1 ¼” x ½”x chest wall deep on 6th intercostal space ½” away from the sternum on left side, vertical in direction, oval in shape, cutting 6th and 7th rib at the sternocostal junction leading to penetrating wound of pericardium and right ventricle of heart (both wall). 2. Incised wound of 1 ½” x ¾” x bone deep on lateral postero aspect of right forearm (middle). 3. Incised wound of 2” x ¾” bone deep on right forearm posteriously 4” below elbow joint. In his opinion "the death was due to shock and haemorrhage following aforesaid injuries which were antemortem & homicidal in nature." . 20. PW- 14 home guard Padam Lama signed in the seizure list prepared upon seizure of wearing apparel and other articles of the victim. 21. PW-15 Arun Kumar Dutta appears to have had no knowledge about the case. 22. PW-18 Prabhat Kumar Chakraborty was the Officer-in-charge, Banarhat Police Station at the relevant time and took up further investigation of the case on transfer of the previous investigating officer. He collected the F.S.L. report and submitted charge sheet against the appellant. 23. All the witnesses examined by the prosecution including the hostile witnesses have unanimously stated that Amirunnesa was murdered at the tea garden. The complainant (PW-6) stated that he was informed by PW-9 that Amirunnesa was murdered by Safique. On reaching the place of occurrence, he met the chowkidaar who divulged that he saw the assailant fleeing away from the spot. Though PW-6 has retracted from such statement in his cross-examination and stated that he had no idea as to who murdered the victim or how she was murdered, he has denied the suggestion put to him that he was not elicited by Sabratan of the murder of the victim by the appellant. In other words, he admitted that he was informed about the incident by PW-9. In other words, he admitted that he was informed about the incident by PW-9. PW-9 is an eye-witness who narrated the entire incident and described how the appellant assaulted the victim with a "bhalla" twice on her right hand and then stabbed her on the chest. She stated that after the victim fell on the ground the appellant caught one of his chappal in one hand and "bhalla" in the other hand and fled away. PW-9 rushed to the house of the complainant and informed him about the incident. Such statement of PW-9 finds corroboration in the version of the complainant who stated that he was informed about the murder of his sister by Sabratan. The statement of PW-9 is also corroborated by PW-7, the chowkidaar of the tea garden who saw a person fleeing away with a chappal in one hand and a "chaku" in the other hand soon after the incident. The chowkidaar is a res gestae witness who was present in the tea garden at the scene of the incident when the incident occurred and has given a firsthand account of the incident. Though he was unable to name the assailant specifically, his evidence read in conjunction with the evidence of PW-9 points towards the appellant and none else, as the perpetrator of the murder. 24. It is pertinent to mention here that cross-examination of PW-9 was deferred by learned defense counsel and in course of her cross- examination on a subsequent date, the witness resiled from her earlier statement. However, the Court put questions to the witness under Section 165 of the Evidence Act to which the witness replied that she had spoken the truth before the Court on the last occasion in compliance with the direction of Learned Public Prosecutor. Therefore it is crystal clear that the witness was won over after her cross-examination was deferred at the instance of the appellant and in view of her honest and candid reply to the query of the Court, her sudden prevarication on the subsequent date pales into insignificance. Placing reliance on the version of PW-9, it can be safely inferred that PW-9 was an unfortunate witness to the gruesome murder of the victim by the appellant and her statement found corroboration in the version of the chowkidaar (PW-7). 25. The post-mortem report of the victim indicates the manner of assault upon the victim. Placing reliance on the version of PW-9, it can be safely inferred that PW-9 was an unfortunate witness to the gruesome murder of the victim by the appellant and her statement found corroboration in the version of the chowkidaar (PW-7). 25. The post-mortem report of the victim indicates the manner of assault upon the victim. Stab wounds were detected around the pericardium and right ventricle and incised wounds were found on the right forearm of the victim which is in conformity with the ocular version of the eye witness PW-9. 26. It is a fact that the F.S.L. report pertaining to the wearing apparel of the victim, blood stains if any, therein and other articles has not lent support to the case of the prosecution. It appears from the F.S.L. report that the blood group of the stains on the items sent for examination could not be determined as the samples were disintegrated. The blood sent for serological determination of its origin and group was also insufficient for such determination. Therefore it is crystal clear that scientific examination of the seized articles could not be undertaken by the forensic department due to inordinate delay by the investigating agency in sending the same for forensic examination. However, such remissness on the part of the investigating agency can under no circumstances affect the prosecution case adversely in the event the case is otherwise substantiated by cogent evidence on record. 27. The entire chain of circumstances coupled with the evidence of PW-6, PW-7, PW-9 and PW-13 leads to the irresistible conclusion that it is the appellant who was the perpetrator of the premeditated and gruesome murder of the victim. The ingredients of offence under Section 302 of the I.P.C. have been substantiated against the appellant beyond the shadow of all reasonable doubt. 28. In the said backdrop, the judgment and order impugned do not call for any interference by this Court and are required to be affirmed. 29. CRA 665 of 2011 be dismissed accordingly. The judgment and order of conviction and sentence dated 23-09-2011 and 26-09-2011 passed by the Learned Additional Sessions Judge, 1st Court, Jalpaiguri in Sessions Case No. 170 of 2002 is hereby affirmed. 30. However, the appellant shall be at liberty to pray for remission of his sentence under Section 432/433 of the Code of Criminal Procedure after expiry of 14 years of substantive sentence. 31. 30. However, the appellant shall be at liberty to pray for remission of his sentence under Section 432/433 of the Code of Criminal Procedure after expiry of 14 years of substantive sentence. 31. Copy of the judgment along with L.C.R. be sent down to the trial Court at once. 32. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities. Joymalya Bagchi, J. - I agree.